PAUL: War on terror doesn’t justify retreat on rights

James Madison, father of the Constitution, warned, “The means of defense against foreign danger historically have become instruments of tyranny at home.” Abraham Lincoln had similar thoughts, saying, “America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves.”

During war, there has always been a struggle to preserve constitutional liberties. During the Civil War, the right of habeas corpus was suspended. Newspapers were closed. Fortunately, those actions were reversed after the war.

The discussion now to suspend certain rights to due process is especially worrisome, given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.

1. Lockerbie was indeed two years later. Therefore, Qaddaffi should have been hit by US forces and terminated with extreme prejudice in direct retaliation for his impudence at Lockerbie in a separate and memorable exercise in justice from the sky. Objecting dictators of other nations could be treated analogously.

2. The Treasury Department should absolutely NOT be in the business of "licensing" lawyers in any event, no matter what the excuse. We managed to have the Stalinist Rosenbergs who conspired to turn nuclear weapons secrets over to the soviets represented very well by first rate and independent trial lawyers (likely communists as well but that is irrelevant) on the Rosenbergs' way to the electric chair without the republic collapsing. See Louis Nizer's The Implosion Conspiracy. And Stalin was generally conceded to be a bit more of a threat than Al Qaeda and its Islamonutcase allies.

2. Separation of powers: Lawyers are all officers of the judicial branch of government. If lawyers need to be "licensed" by the executive branch of government before they dare represent the popularly damned in courts, then will the executive next decide that it must license citizens before they can be elected to Congress? Before, as criminal defendants, they can plead not guilty and contest charges? If Timothy Geithner, Treasury Secretary in Obamaville, is belatedly indicted for income tax evasion, will his department claim a right to "license" prosecutors to prosecute him? Time for the ACLU to grow a pair and either put up or shut up. They don't need a Treasury Department "license" to represent the ACLU itself in an action against Comrade Obozo, his Treasury Department, and anyone else who would like to claim that lawyers representing clients can be, on that basis alone, be regarded as co-conspirators. Temporary and permanent injunction, temporary and permanent mandamus, declaratory judgment and maybe even an action in quo warranto alleging that even considering much less granting or denying such licenses by the Treasury Department (no less) exceeds any legitimate power of the department or any executive department and is therefore ultra vires. It wouldn't have taken three seconds for the ACLU to seek such remedies against Nixon or Reagan if they had tried such arrogant extension of executive power.

3. Anwar Awlaki's kid: If he is not even collateral damage (as he must not be if murdered in some dining joint with his teenaged friends while blissfully unaware of dad's previous demise). The kid was an American citizen and the government seems to have had no excuse to assassinate him. This distinguishes his death from that of Osama bin Laden's on both counts. Due process was owed to the kid and not to bin Laden (who should have been bathed in pig blood on film before burial.) I would also imagine that any statute of limitations on legal actions to seek damages to redress the kid's death would be suspended while the executive branch tries to intimidate lawyers as officers of the judiciary from bringing such actions.

4. For actual terrorists convicted after full due process, slow death by scimitar would seem an appropriate substitute punishment instead of utterly unspectacular and unsatisfying death by injection. If necessary, delay the punishment during any period during which the convict is providing useful intel for us to kill his/her colleagues in terrorist crime. Also scimitars will generally trump jackboots and should be legally deployed whenever jackboots have been against those deploying the jackboots.

5. I am a recovering attorney and generally no fan of the court system but it DOES have its uses AND its OBLIGATIONS. My dissatisfactions with the judicial branch are no excuse for that branch to shirk its obligations. If we have had to make believe for nearly forty years that women have a "right" to hire abortionists to murder the unborn just because SCOTUS says so, then the judiciary should step up to the plate and show its imperial sweep in matters that count and are actually its responsibility like enforcing due process of law and protecting its officers from illegal intimidation by the Treasury Department or any other executive bureaucracy.

Now that I have read the link, it appears that ACLU has, in fact, sued Treasury and separately obtained "permission" or a "license" to represent Nasser al Awlaki (the now dead Islamolooneytune's father) to advance the now dead etc.'s interests in not being taken out. One suspects that Nasser al Awlaki will also be able to represent the interests of the now dead grandson. In this way, Al Qaeda will be able to finance its activities with US gummint $ and Obozo and Geithner (and Eric Holder???) have no one to thank other than their imperial selves who should be held responsible next November.

Note however that the criminal cleric al Awlaki AND his son were killed AFTER initiation of the lawsuit. The judiciary has an obligation to prove its own gonads by recognizing that the airstrikes against two American citizens (however reprehensible excuses for human beings) are a direct challenge to judicial authority. What would the judiciary do if an apparently state statute authorized governor of a state ordered state police and militia to militarily attack an abortion mill and kill all the perps of the abortions (right down to the receptionists and the janitors and the security guards) on the perfectly sensible theory that they are engaged in a conspiracy in serial homicide and present a clear and present danger of continuing their abortions, Roe vs. Wade or no Roe vs. Wade? Without modification of Roe vs. Wade, the judiciary would go nuclear. Due process is quite explicitly guaranteed in the Constitution unlike "reproductive rights" or anti-reproductive "rights" for that matter.

Obviously you are right on this concern about American citizens being dead BEFORE their rights can be vindicated which is all the more reason why the courts (read SCOTUS ultimately) should act vigorously to vindicate judicial authority and react massively to the matter of the fate of al Awlaki and his son being taken out of judicial hands by an administration run amok, trampling due process and thumbing an administrative nose at judicial authority. Nixon did not kill any American citizens without due process as I recall but he did thumb his nose at judicial authority and the judiciary responded massively. Time for a rerun on that.

I cannot begin to tell you how much I despise the al Awlakis of this world, but a citizen is a citizen and entitled to the rights of a citizen under our Constitution. People (not I) may argue as to whether we have God-given rights. It is not particularly permissible or rational for anyone to ignore those rights that are enumerated in the Constitution and, above all, where the rights are personal such as the right to due process and protect the individual FROM government overreaching.

The judge (Irving Kaufman) in the Rosenberg case was a Jewish man lest anyone suggest successfully that anti-Semitism was a motive for the prosecution. That judge's family had to move, I believe, to a log cabin in rural Vermont, for their safety during the trial because of threats. No one would have blamed Kaufman for begging off but that would have weakened the judiciary.

Two leading prosecutors of the Rosenbergs were also Jewish for probably similar reasons: Irving Saypol and Roy Cohn. The Stalinists threw every sort of attack at the government, the judge, the prosecutors, the prosecution witnesses, etc., but to no avail because these prosecutors and the judge had the backbone to vindicate judicial authority and the espionage laws of the United States. The younger defense attorney of a father and son team dropped dead at an early age not long after the trial with his exhaustion in the defense effort being a major cause. The defense lawyers were also a credit to the bar regardless of their ideology or motives.

I seldom wish the ACLU well given its history but this suit against Treasury is a serious exception to my rule. They deserve credit for trying and MAJOR credit if they win. I do not see Stephen Breyer or Ruth Ginsberg siding with the government on this. If Sotomayor, Kagan or any other justice agrees with Obozo on this, their resignations should be submitted along with their opinions and they should be pilloried ina future book entitled: Profiles in Treason and Cowardice.

Let's face it, none of us really give a darn about Awlaki personally; the interest is purely selfish. It's that if they can deny Awlaki his rights as a citizen without trial, without even charges, and just kill him based on a presidential order -- and even worse kill his 16 yr old son who was guilty of absolutely nothing -- then the same can be done to any of us when it's politically expedient.

What blows me away about all of this is that when you strip away all the rhetoric, there really is nothing unique about this situation with Islam. America has been here before -- with communism.

During the Cold War, we had communists infiltrating. Your references to the Rosenbergs was apt -- and when they were guilty of crime, we successfully prosecuted them and executed them. And yet, Americans rejected living in a police state to "protect us against communists". They rejected McCarthism when they saw it's excesses that persecuted people who just maybe, might have some "guilt by association", but who were really innocent. (One of those people was a friend of mine.) Today, we the sheeple seem to blindly accept it -- as long as they are after "the other guy and not me".

I desperately wish that Conservatives would get together and sponsor an ACLU equivalent, because Liberals should not have the only moral high ground on civil liberty issues. If anything, Obamacare and laws like this S1867 prove that.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.